The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
Lying to anti-doping organisations (ADOs) is only a good idea if you have money. Mo Farah denied receiving L-Carnitine injections when questioned by investigators from the US Anti-Doping Agency (USADA), returning to admit receiving them after being told to do so by British Athletics. No action has been taken against him. Mark Dry falsely told UK Anti-Doping (UKAD) that he had gone fishing, and has been sanctioned with a four year ban, after it appealed a Decision to clear him.
Neither situation would have involved an anti-doping rule violation (ADRV). L-carnitine is not a prohibited substance; and Dry’s case revolved around ‘whereabouts’ requirements for athletes to indicate their location for testing. Dry was in the Domestic Testing Pool (DTP), so only had to indicate overnight accommodation and regular training activities so that ani-doping organisations (ADOs) can conduct out of competition testing. The DTP is not the same as the Registered Testing Pool (RTP), where athletes have to indicate their location for one hour in every 24, and face consequences if they are not where they say they are going to be.
Farah’s intravenous infusions would only have resulted in an ADRV if they were in excess of permissible limits, and Dry’s failure to be at his stated location would have resulted in a filing failure within the DTP. Three whereabouts filing failures within the DTP in 12 months results in an athlete being moved up to the Registered Testing Pool (RTP). In the RTP, three filing failures in a 12 month period equals an ADRV.
At first glance, both instances appear to fall within the definition of ‘tampering’ within the World Anti-Doping Code, which includes ‘providing fraudulent information to an Anti-Doping Organisation’. When considering cases in courts of law, a consideration can be whether a person accused of an offence stands to benefit from somebody believing and acting on/not acting on a lie.
Did Farah stand to benefit from his lie? Arguably, yes. He was a member of an RTP and the US Anti-Doping Agency (USADA) were attempting to ascertain if his coach, Alberto Salazar, had administered substances in excess of permissible limits under the World Anti-Doping Code. Salazar had instructed all his Nike Oregon Project (NOP) athletes to deny receiving infusions and Farah only admitted the lie when instructed to tell the truth by British Athletics. If the infusions were above permissible limits, Farah could have been charged with an ADRV.
Did Dry stand to benefit from his lie? Arguably, no. A single filing failure in either the DTP or the RTP results in no action against the athlete. Three failures to be at your stated location within 12 months within the DTP only results in an athlete being moved to the RTP, where three whereabouts failures within 12 months equals an ADRV. The only benefit to Dry was his perception that his ‘clean’ record would be stained.
In addition, there are doubts as to whether an ADRV of tampering with the doping control process can apply to Dry. This is because to be guilty of tampering, one has to be guilty of fraudulent behaviour in an attempt to subvert the doping control process.
On 18 October 2018, UKAD sent Dry a letter confirming that there would be no consequences for a DTP filing failure. Can you be guilty of fraudulent behaviour designed to subvert the doping control process if there would be no consequence for your actions in the first place? This perhaps explains why UKAD amended the charge issued to Dry to include ‘attempted tampering’ on 10 July 2019, before his 18 September hearing.
As mentioned, a charge was never issued to Farah – by USADA or UKAD. The damages payable to a big name athlete, should they win a litigation case for damages against an anti-doping organisation, could be huge.
UKAD has backed away from such challenges before. On 12 December 2017, UKAD concluded a ‘compromise agreement’ with Tyson Fury 14 months after he launched High Court action. ‘In recognition of the respective counter-arguments and the risks inherent [emphasis added] in the dispute resolution process, each side has accepted a compromise of its position’, read a UKAD statement.
Dry doesn’t present any such inherent risks to UKAD, firstly because he doesn’t have the money to launch expensive High Court action. Secondly, even if he did, any damages payable would be limited – he was a funded athlete and doesn’t earn money from sport.
Also, despite having won Bronzes in the Hammer Throw at the Glasgow 2014 and Gold Coast 2018 Commonwealth Games, he isn’t classed as an ‘international level’ athlete, which means he can’t appeal to the Court of Arbitration for Sport (CAS). If you’ll pardon the idiom, Mark has been left high and dry by UKAD’s successful appeal against the NADP’s decision to clear him.
But why was the appeal launched in the first place? Dry has been sanctioned with the same ban that would be applicable to an intentional doping cheat. For telling UKAD he had gone fishing. He has spent around £20,000 on an 18 month appeal process.
“I’m a sports therapist”, he argues. “I fix people. They’ve destroyed my business as they’ve told me I can’t treat international level athletes. I don’t understand how that’s legal. That’s over 50% of my client base. So my business has collapsed.”
“I did a case with them”, he continues. “I saw two athletes pay off DCOs in Dakar. I reported it and provided substantial assistance. I’ve been actively against doping and cheating my entire career. And now I’ve been branded a cheat.” So how did we arrive at this upside down conclusion?
On 15 October 2018, UKAD doping control personnel arrived at Dry’s home, where his DTP location filings indicated as his overnight accommodation, where he would be available for out of competition testing from 14 October 2018 until 20 October 2018. There was no response from the doorbell, and a neighbour said that Dry was in Scotland.
The next day, Dry updated his location to show that he was at his parents’ address in Scotland. On 18 November, UKAD sent Dry a letter advising him of an ‘apparent Domestic Testing Pool filing failure’. That letter, reproduced in the NADP decision to clear Dry, said that there would be ‘no consequences’ for a DTP filing failure (right).
In an 18 October email, Dry said that he had gone fishing on the 15th, travelling to his parents’ address on the 16th (see right). Dry’s partner corroborated his story in a 24 October email. UKAD was not satisfied with the explanation and in a 3 December 2018 letter, invited Dry to a formal interview regarding a potential ADRV.
After receipt of this letter, Dry admitted the violation via an email statement (right). This was followed by a formal interview on 23 January 2019, where he admitted he had told the lie because he didn’t want to “get in trouble and get a strike” against his name.
On 8 May 2019, UKAD charged Dry under Article 2.5 of World Athletics’ Anti-Doping Rules (ADR – see right), as adopted by UK Athletics. This provision is copied from the World Anti-Doping Code, but doesn’t include the clarification (below right) detailing what ‘tampering’ might entail. The World Athletics ADR characterise tampering as ‘Altering for an improper purpose or in an improper way; bringing improper influence to bear; interfering improperly; obstructing, misleading or engaging in any fraudulent conduct to alter results or to prevent normal procedures from occurring’.
On 10 July 2019, UKAD amended the charge to include attempted tampering. “This shows that they know it’s not tampering because of the inclusion of the lesser charge in there”, argues a frustrated Dry.
The initial Decision (PDF below) details that Dry had undergone hip resurfacing surgery and was taking Gabapentin to manage the pain. Dry says he was also drinking, as he thought his career was over. “I was a mess”, he admits.
UKAD drafted in psychiatrist Dr. Philip Hopley, who has been used by UKAD in other cases1. He said that Dry’s medication couldn’t have caused enough confusion on its own to prevent him from forming an intention to provide false information. Dr. Hopley pointed to photos and videos of Dry posted on social media of him ‘jogging’, ‘hammer throwing’, ‘training’ and ‘pulling light aircraft’ as evidence that contrary to his arguments about his state of mind, Dry was more than OK. Whether such a conclusion can be drawn from social media posts was not apparently discussed.
In any case, Dry didn’t dispute the idea that he told a deliberate lie. He argues that the medical information outlined above was not intended to provide an excuse for his behaviour, just to provide background information as to his state of mind at the time. In any case, the medical information was discounted as ‘of no real assistance’ by the Panel.
The NADP concluded that when considering a charge of tampering under Article 2.5 of the ADR, one cannot consider the phrase ‘providing fraudulent information to an Anti-Doping Organisation’ in isolation. It considered that there needed to be an attempt to conceal the truth in order for a lie to be considered fraudulent, citing the CAS ruling in the Karl Murray case (see right for the relevant paragraph).
Dry had lied, but then told the truth when challenged. He had not concealed the truth. He was a member of the DTP and not the RTP, so even in the case of three filing failures, would not be subject to an ADRV. The worse that could happen was being moved to the RTP.
All of this was outlined in the skeleton arguments put together by Dry’s legal team (PDF below). The NADP agreed and cleared him, arguing that it was not comfortably satisfied that there was an ADRV at all.
‘The ADR provide no sanction at all for filing failures by those in the Domestic Testing Pool’, reads the Decision. ‘Mr Dry was in no respect evading the operation of the ADR. The untruth told by Mr. Dry, as well as that of his partner, came in response to the UKAD letter of 18 October 2018. That letter expressly states that one Domestic Testing Pool (i.e. what Mr. Dry sought to avoid) “does not have any consequences”. The concept of fraudulently avoiding no consequences is indeed difficult to follow.’
UKAD filed an appeal against the NADP Decision on 29 October 2019, the final day of the 21 within which it was allowed to file an appeal. The appeal was filed by Stacey Cross, Deputy Director of Legal & Regulatory Affairs at UKAD. It also engaged Jonathan Taylor QC of Bird & Bird, former Chair of the Compliance Review Committee (CRC) of the World Anti-Doping Agency (WADA) and as Counsel to World Athletics, drafter of Regulations for the body.
The three person NADP Appeal Panel, Chaired by Charles Hollander QC, disagreed with many aspects of the original NADP Panel Decision, chaired by Robert Englehart QC. In effect, it would appear that a Queen’s Counsel (QC) involved in drafting sport’s rules convinced another QC that the interpretation of anti-doping rules by a third QC was incorrect.
In addition, paragraph 33 of the NAD Appeal Panel Decision (PDF below) makes it clear that it does not agree with the CAS’s interpretation that there needs to be not just a lie, but an attempt to conceal the truth in order for a lie to be considered fraudulent under the definition of tampering in Article 2.5 of the ADR (see right).
It also disagreed with the assessment that Dry’s conduct had no impact on the doping control process, as it regarded one location filing failure as the first step towards being placed in the RTP and being subject to a whereabouts filing failure. This is a complete reversal of the idea that DTP athletes cannot be subject to an ADRV for DTP location filing failures, since the worst that could happen is they could be moved to the RTP. It is also unclear whether this assessment bore in mind that after 12 months, Dry’s DTP filing failure count would be reset to zero.
This change of view allowed the NAD Appeal Panel to consider Dry’s conduct as designed to subvert the doping control process, facilitating the admission of the ‘tampering’ charge. Despite being warned by Dry’s representative, athlete lawyer Howard Jacobs, that ‘it was not open to us to reach a conclusion which was at odds with he findings of the Tribunal’, it appears this is exactly what it did (see right).
‘We disagree with the conclusion of the Tribunal and find the charge against Mr. Dry proved’, underlines the Decision. ‘We are comfortably satisfied that Mr. Dry committed an ADR violation’.
Perhaps understandably, this apparent reversal has been confusing and all consuming for Dry. “They changed matters of fact from the original Panel”, he points out. “They’ve treated it as if they’ve heard it all, but they haven’t heard it all. They read a write up. They didn’t actually hear any of the evidence. It’s just mental!”
It is very easy to paint UKAD as the bogeyman in this situation. It has spent taxpayer money on pursuing an 18 month appeal against an athlete who made a silly mistake and, having been told by UKAD that there would be no consequence, confessed. Dry freely admits that he lied, but he owned up to the lie. And he was punished for owning up.
So why did UKAD pursue the appeal? The answer perhaps lies in how the anti-doping system is structured. Athletes who are part of an RTP have to provide location data showing where they will be available for testing for one hour in every 24, three months in advance. As well as being confident that information is correct, ADOs need to know that if an athlete isn’t where they say they are, then false explanations will lead to consequences. Otherwise, there would be no disincentive stopping athletes from lying about why they are not at their recorded location.
But the DTP requirements are not the same as the RTP requirements. They only require athletes to file overnight accommodation and regular training locations, so that they can be targeted for out of competition tests. As such, an athlete could come up with any excuse as to why they were not at their stated location, and face no consequence other than a filing failure that moves the athlete closer to entry into the RTP. It is logical – as the one hour window doesn’t exist for DTP athletes, it would be disproportionate to sanction them for not being at overnight accommodation or a regular training session if a testing team arrives.
The anti-doping system likes to say that it rewards those who tell the truth. The NAD Appeal Panel Decision appears to go against this. It tells athletes that if you lie about your location, there is no reward for being truthful. In other words, if you are not where you say you are and you do lie about your actual location, you had better maintain that lie. In Dry’s words: “If I’d have just said ‘I was fishing. Go f**k yourself’, I would have been fine”.
It also sends a dangerous message to athletes. Anti-doping organisations like to say that they are there to advise and assist athletes, and there have been instances where that is the case2. However, they are funded to catch doping cheats, and Dry’s case shows the lengths to which they will go in order to secure a conviction. UKAD didn’t help Dry at any stage during this process.
Dry’s case revolves around what conduct is necessary to subvert the doping control process. The NADP found that there must be more than a mere lie. The NAD Appeal Panel disagreed. It is hard to avoid the conclusion that conduct required to subvert the doping control process is whatever a ADO wants it to be. This has dangerous implications for all athletes.
The real bogeymen are perhaps the anti-doping rules. Arguably, they gave both UKAD and the NADP no room to manoeuvre.
As mentioned, Dry was in the Domestic Testing Pool (DTP), and if a filing failure had been recorded against him, nothing would have happened. Even if three filing failures had been recorded in 12 months, the worst that could have happened is that he would have been moved to the Registered Testing Pool (RTP), where three whereabouts filing failures in 12 months would have resulted in an ADRV. Dry’s conduct was not designed to avoid an ADRV. There could be no ADRV.
It would appear sensible that in cases such as his, lying conduct would negate the ‘three strikes’ rule in the DTP and would result in him entering the RTP immediately, with one strike already against his name (three in 12 months required for an ADRV). No such sensible provision is spelled out, however, and Dry has found himself sanctioned for tampering with the doping control process. “That was never my intention”, he argues.
There is no doubt that punishing an athlete in the Domestic Testing Pool (DTP) for lying about one filing failure that couldn’t have resulted in an ADRV for ‘tampering with the doping control process’ is not proportional. Tampering is designed to cover situations where people substitute other people’s urine in sample bottles in order to avoid an adverse analytical finding (AAF – or positive test); or run away from doping control officers.
As can be seen from the above links, both situations have happened. Dry isn’t guilty of anything so nefarious, yet has been sanctioned with the same four year ban that would be applicable for the above offences.
‘Art. 2.5 must be interpreted in a manner that does not conflict with the requirements of due process, procedural fairness, or natural justice’, reads the skeleton argument (above) in support of Dry’s case, citing four CAS decisions that support this principle. ‘It is respectfully submitted that the Regulator must not ignore its rules and it must not interpret them in such manner that would lead to an error of law and injustice’.
‘The Code has been drafted giving consideration to the principles of proportionality and human rights’, reads the World Anti-Doping Code. Does Dry’s four year ban, which prevents him earning money through his sports therapy business, comply with either of these principles? If not, then it should be reconsidered. Has there been an error of law and justice?
As WADA President, I am committed to ensuring that athletes’ rights are upheld under the World Anti-Doping Code…#cleanathletes
— Witold Bańka (@WitoldBanka) May 13, 2020
As indicated in the above tweet, Dry is not going to take his sanction lying down. Complaints have been filed with WADA, World Athletics, and British Athletics. Nobody responded, but British Athletics is understood to have acted on Dry’s complaint, which should require World Athletics to assess the situation. As mentioned, he isn’t defined as an ‘international athlete’ despite having competed internationally, so he can’t appeal to CAS.
“Is the sport of Hammer Throwing a cleaner, safer, better place without me in it?”, he asks. “I was coming back from my third hip surgery; I’d come back from two hip reconstructions; I’d just won a medal at the Commonwealth Games. I’ve fought back, I’ve not quit, I stuck it out when I didn’t get selected for London [2012 Olympics], I made the Rio Olympics, I broke the Scottish record that I was told I was never going to break, I made the World Championships I was told I was never going to make, I made the Olympics I was told I was never going to make.
“I know I’m not a big name athlete and I don’t want to be. But I want to be a beacon of hope for athletes that aren’t tall enough, aren’t fast enough… I’m six foot – way too short to be doing what I’m doing! But I will not give up! This got me to the Olympics and I achieved my dream. That’s such an important message to young people. One of the most important things in athletics is resilience and balls.”
And despite being a hammer thrower, Dry has plenty of them. His story of resilience and comeback is one from which young athletes can learn. Overturning this Decision would be his biggest comeback yet.
1. For the full Decision in his case, click here.↩
2. The Jimmy Wallhead case is a good example of a situation where an ADO – USADA – helped him avoid a lengthly sanction after a supplement caused a positive test; The Liam Cameron case is a good example of a situation where an ADO refused to help an athlete and didn’t believe his explanation, and also details how strict liability is punishing potentially innocent athletes. This theme is explored in the Hiromasa Fujimori case. Fujimori refused to lie about the source of his AAF – or positive test – and was punished for it. The Gordon Gilbert and Demarte Pena cases illustrate how determined ADOs are to prosecute athletes, even when evidence indicates contamination of products they have consumed. ↩
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